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Tuesday, May 01, 2018

Checking in on TX probation revocations: A major incarceration driver

Revocations from probation remain a major source of new entrants into Texas prison system (>23,000 on FY 2017). Here's the best report we have in Texas describing probation revocations, covering FY 2017. A few highlights:

The number of probation officers statewide is down more than 400 since 2010 (3,530/3,115). However, this decline tracks the overall reduction in probationer numbers, caseloads remain below 2010 levels.

Only 20 percent of probationers revoked to prison in Texas were serving time for violent offenses, according to the report. The others were on probation for nonviolent property or drug crimes (63%), felony DWI (6.2%) or other miscellaneous offenses (10.8%).

Technical revocations - or revocations for violating probation rules as opposed to committing new crimes - were up slightly since 2010 and accounted for 50% of all revocations statewide. These are the percentage of revocations which were for "technical" violations among Texas' largest counties:

Said the report: "The majority of technical revocations were among offenders who were placed on community supervision for a property or controlled substance offense (66.0%)."

Despite crime declining overall during this period, felony probation placements have increased each year since their 2014 nadir. Similarly, early discharges from probation - where a probationer is rewarded for good behavior via early release from probation - decreased each year since 2014. Caseloads also began to rise slightly after 2014.

Bexar, El Paso, and Collin Counties saw big one-year spikes in their numbers of probationers revoked to TDCJ from FYs 2016 to 2017: Increases were 20.1%, 29.7%, and 28.2%, respectively.

Overall, about a quarter of probationers with the shortest probation sentences (up to two years) were revoked last year: "Revocations accounted for 38.9% of those offenders terminating community supervision with a probation length of up to two years and 25.3% of all offenders placed on community supervision in FY2015 for up to two years."

Even after they've succeeded on probation for more than two years, most probationers still face active supervision: "Less than a quarter of offenders remaining under supervision two years after placement were supervised indirectly. Most offenders were directly supervised, meaning they had face-to-face contact with a community supervision officer at least once every 90 days."

IMO the rate of technical revocations remains way too high. To me, these data say probation revocations remain a big driver of mass incarceration a decade after the Texas-model reforms passed, and a big chunk of it is still for technical violations. So, not especially good news.

That said, the purpose of this blog generally isn't to redistribute information to the masses. I record links and analyses here that I think I'll want to know later, and simply allow others to view it in the spirit of the era. Without being rude about it, stuff posted on Grits is there for my purposes, not readers'. :) Cheers!

Your UA came back positive again for meth. This is the third time in three months, even though you've been in outpatient treatment. We really need to send you to residential treatment. We don't want you six feet under.

Listen, I'm on for a state jail felony. I spent 90 days in jail before I got released on a PR bond. If I get revoked, I'll probably get plea bargained down to a year in state jail, and less than nine months later I'll be totally out from under probation. If I go to residential treatment, I'll spend 6 - 9 months in a program, and I'll still be on probation for two more years, I'll be paying those fees, I'll be peeing for you, and I'll be going to aftercare. I just want to go do my time and get it all over with.

Please reconsider. If you don't get clean and sober, you'll be back here.

Let me walk you through the process that results in a technical probation violator being sentenced to prison:

- Probation officer files a violation report which, if early in the probation term, includes recommendation for sanctions in lieu of revocation. If the end of term date is looming and no other sanctions have worked, then revocation is recommended.- The District Attorney's Office decides whether or not to convert the violation report into a motion to revoke.- If allegations are proven or pled guilty to, then the Judge, and no one else, sentences the offender to jail or prison.

Sanctions I have utilized to avoid revocation include extension of term, increased frequency of reporting, drug counseling, anger management, additional fine, weekends in jail, and additional community service. Sometimes the ADA wants to pursue revocation despite my recommendation for an alternative. Sometimes the offender wants revocation rather than remain on probation. I have argued, sometimes successfully, for unsuccessful discharge from probation. Honestly, I am tired of tuning into this blog and reading how badly my peers and I are the cause of prison overcrowding. We don't pick our "customers". We don't set the conditions or the amounts of court ordered financial obligations. We don't write the laws which mandate interlock or woefully expensive classes which look good on paper but have little or no statistical validity in reducing repeat offenders. In this blog, the probation departments are the "low hanging fruit" when it comes to finding a scapegoat. Want something different? Then change the system and how it's funded (yes, not being a bill collector would be fine with us, too).

@3:53, nobody is scapegoating probation; these are the data. I'm sorry if you don't like seeing quantitative analyses of your work, but these are numbers your department reported, not something I made up.

FTM, reformers are trying to change the system to fund treatment. Unfortunately, probation directors are THE main obstacle to reform at the Lege. They've even turned down solutions which would have brought y'all MUCH more money bc they want that felony tag for drug offenders and the extra $$$ that comes with it. So they double down on failure and tell POs on the front line that it's reformers who are unreasonable instead of them embracing failure and fearing change. S'not true, but all I can do is show you the facts. I can't understand them for you.

Your quantitative data falls short of identifying the source of high technical revocation rates. Its not in the judges office or the probation office or the jail. Try next door, the prosecutor's office. Good luck because the state doesn't require prosecutors to track and submit jack shit that would provide quantitative data.

The solution of making a drug possession charge a misdemeanor will work just as well as state jail felonies have worked. See the example above from 3:33 and basically put "misdemeanor" wherever you see "state jail." Even though many, many offenders don't have a GED, they do know how to calculate time, and it's sad to see how many will choose time over treatment. If you make drug possession a misdemeanor, you'll see a flood of them choosing to do their county jail time instead of doing treatment because most county jails give at least 2 for 1 on days served. A normal, ordinary responsible person would choose treatment, but we already see way too many addicts choose state jail time over treatment. A misdemeanor sentence will just accelerate that.

The problem is NOT felony vs. misdemeanor convictions. The problem is making treatment a desirable option over doing your time. I've heard of two proposals being discussed that I hope will come before the legislature to provide a solution.

1) Provide a strong incentive to use diversion for state jail felonies. In other words, the addict completes treatment successfully, and the charge gets dropped entirely - no felony, no misdemeanor, no record. The hurdle with that will be what 4:54 noted above: the DA's office. Many DAs don't like handing out diversions because (unfortunately) voters still prefer to elect DAs for locking people up instead of diverting them. We can only hope that is changing.

2) Provide an automatic 12.44 (i.e., Penal Code 12.44 for reduction of a state jail felony to a misdemeanor) when a drug offender completes treatment and their probation term successfully.

Both of these provide a strong incentive and a win-win situation for addicts: they get treatment and they don't have a felony.

I don't think anyone can fault probation for their myrmidon dedication to due process. I know we have seen similar if not the same examples from probation officers here before.

A "free as in beer" solution would be to make 100% of probation deferred adjudication. Then the decision to "revoke me because I'll plea out in less time" becomes more costly because of the now accepted felony conviction. And it would incentivise comiance because their good conduct (which in the current system is vetted by what may be higher than necessary supervision levels) earns them an essentially clean slate.

Federal probationers receive far less supervision in my experience and we aren't seeing them on the news every night reofending.

I'd be curious also to see the % of technical violations by caseload. Dallas county may be revoking 57% of all probationers for technical violations, but for example they may also be revoking only 30% of drug cases for technical violations, 15% of DWI's, 60% of domestic violence, and 95% of sex offenders. It seems clear that the process could be improved.

333 is spot on. I was just in court advocating for a probationer to go to residential treatment after he had overdosed on heroin a month ago. We have previously sent him to intensive outpatient treatment and after he continued to use enrolled him in a Drug Offender Court. There he received additional treatment and additional resources. We provided him with bus passes and set up his reporting times after 5:00pm so he did not have to miss work. We paid for both group and individual counseling as well as set him up with mental health counseling at no cost to him. However, after continuing to use heroin and having to be hospitalized due to an overdose we were back in court. We had multiple options for him. His insurance would pay for private rehab, we could send him to a CSCD ran residential treatment in another county, ISF, or SAFPF. But, in order to do any of those programs he would also have to be extended on supervision because he only has 6 months left on a 24 month supervision. The probationer refused treatment. The DA office, Defense Attorney, Supervision Officer, Counselor, Mental Health Counselor, and Judge were all in court explaining we would send him to treatment and he could pick from the options above and he 100% refused treatment. After the judge explained he could order him to treatment even if the probationer did not agree he made the comment to the court "If you send me you will waste your time because I will not do it and will not participate." The probationer explained in court that he was on a state jail felony and based on his case he would be out of jail before being out of treatment. The judge went ahead and revoked his supervision. Now this case will be reported as a technical revocation. CSCD's will be criticized for revoking this case for "technical violation of drug use and failure to attend treatment." No one will point out all the work, chances, interventions, and time that went into this case to get to this point. All this blog and even CJAD will point out is, this case was a technical revocation for a nonviolent offense. When does all the back work get acknowledged and when does some of the responsibility get placed on the offender?

Is it your position that this offender and the community would be best served with his encarceration?

I don't think anyone believes probation doesn't do an enormous amount of work trying to lead the proverbial horse to water, but a number of us think it is a poor outcome when an offender, deemed safe enough to live amongst the community, is sent to prison for something other than a new crime.

Encarcerating probationers seems just to destabilize their lives, something drug offenders especially are good enough at doing themselves.

If the tools you're offering them now aren't working then it's time to find new tools.

In Sex Offender treatment, Dr. James Ferrara in Austin has been touring probation departments across the state consulting for the "Good Lives" therapy model that encourages positive life affirming changes which differs from the traditional (and moronic) relapse prevention model.

Maybe we just don't have a good idea about how to adequately treat addicts?

Anonymous 1:41, help me understand your position. " a number of us think it is a poor outcome when an offender, deemed safe enough to live amongst the community, is sent to prison for something other than a new crime." Lets apply that logic, a person failing a drug test is to be treated differently than a person who is caught by a police officer in possession of drugs? At some point in time, did not the person with the failed test also "possess" the drug? Help me understand why the outcomes should be different when the behavior is identical.

The outcome isn't the same because the legislature hasn't made it the same. Being high isn't a crime, possessing drugs is. And from a probation standpoint I'd think UA's should be a diagnostic tool.

If you find a probationer who is dirty for drugs, then he was obviously in possession of them in the past. To be in possession of them meant he had contact with other bad actors, and was in places not conducive to his recovery or otherwise pro-social behavior. Failing a UA is the final stage of a cascading failure and you're only sanctioning the behavior THEN. That's like only ticketing drivers when they hit pedestrians.

I think the reality is we have a piss poor system for monitoring drug and alcohol offenders. At the same time right across the hallway from the Drug unit in the Sex Offender unit they can leverage police surveillance from local Sex Offender Monitoring units, polygraph testing, manditory treatment which results in immediate sanction for nonpaymnon- or attendance, and manditory collateral contact schemes. All these tools were put in place when the pervailing theory was that RSO's were to be managed on a relapse prevention model as if they were addicted to their sexually abusive behavior. Now the science behind offender recidivism is 180 degrees out of phase with that theory, but you won't see the probation departments giving up those resources, the Hobbesian reality is that they work perfectly in combatting the antisocial behaviors of the offenders however few they may be.

In industry where accountability is taken far more seriously than in any government role they would start an immediate Failure Mode and Effects Analysis to determine how that probationer came to being high. His own free will and desire to get high is a "human factor" and that decision was enabled by an environment that either encouraged his failure or didn't recognize the path he was taking to get there.

Unfortunately many prosecutors do not and will not see it the same way you do. For example, prosecutor offers a plea bargain for state jail felony possession to an offender sitting in jail because it is not a good case to take to trial. Offender wants out, defense attorney does not have to spend a lot of time on the case, and presto the offender takes a plea to probation. Prosecutor views any subsequent use of substance (technical violation) as a second bite at the apple and down goes the offender. Which by the way it is much easier for a prosecutor to revoke on a condition of probation than proving up the original charge that placed the defendant on probation. Same thing happens to sex offenders when "it isn't a good case to prosecute." Plea them to probation and "he/she will screw up and we will send them on a violation."

9:30 Unfortunately, being high on probation violates the conditions mandated by the same legislature you cite as having not "made it the same". Conditions of supervision are prescribed for use by courts legislatively without such they would have no authority. I agree, industry is much more serious, but I would offer that industry would not hesitate to cast aside drug addicted employees if doing so served their corporate interest and would do so much swifter than an individuals supervision would be revoked. And for the record, courts don't "sanction for the behavior THEN". The revocation process contains a judgment that specifies the original crime for which the defendant was probated. That is what the person is incarcerated for, the original crime. Which by the way they could have been sentenced for without the opportunity for supervision in the first place.

I won't argue that prosecutors are a large part of the problem as well.

One Communuty Supervision officer I spoke to confessed that the DA's office specifically followed up with him on certain probationers asking if they had sufficient violations for revocation yet, sometimes as early as thirty days after sentencing.

When the standard of prosecutorial good conduct is as low as "pusillanimous realism," things are not well. Because in these cases you have a prosecutor assuming a defendants guilt, acknowledging they can't cost effectively prove it beyond a reasonable doubt, and chooses to protect their personal record over the rights of the accused. These are quite literally the probationers who are "set up to fail," which is a regularly refuted meme when said it probationers.

These prosecutors are representing to the Judges and community that these defendants are redeemable and able to assume pro-social behaviors with supervision and treatment while expecting them to fail. The offenders then pay the county for their supervision until their revocation when the State takes on the burden if their encarceration.

Do you think many judges would accept a plea if the porosecutor announced "We don't think we will win at trial, but with some extra supervision and partial suspension of this suspects rights we know we'll get him next time!"

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